Johnson v. Rankin

Filing 37

MEMORANDUM ORDER as to motion to quash; Tab A-l, Summary of Investigation.The Document behind Tab 1 constitutes the VSP's investigative summary, directed to Portsmouth Commonwealth's Attorney Earl C. Mobley. It is an evaluative summary cont aining the impressions of its authors concerning the evidence described. In addition, most of the factual material describedin the document is available in other, separately categorized materials. Accordingly, the VSP's motion to quash is grante d as to A-l, which will not be produced. Tab B-l, Portsmouth Police Department Reports A number of documents behind B-l concern investigative materials prepared by the Portsmouth Police Department. Because these materials were obtained from Portsmo uth Police Department, which has raised other objections to their production, the Courtdeclines to order their production from the VSP file pending argument on Portsmouth's separate motion. Tabs C-l through C-4, Crime Scene ExaminationThe four documents contained under the category "Crime Scene Examination", reflect objective analysis of the physical condition of the scene where the incident occurred. All of the information in document C-l through C-4should be produced, subject to the Protective Order. Tabs D-l through D-4, Lab Reports All of the documents in section D involve postmortem testing and examination of the decedent, Denyakin, no factor warrants withholding themand they will be produced subject to the Protective Order. Tabs E-l through E-6, Rankin Materials Materials in section E relate to the defendant, OfficerStephen Rankin, documents E-1 and E-5 will be produced subject to the protective order. Documents E-2 and E-6 will be produced subject to the prot ective order. Documents E-3 and E-4 may be withheld and VSP's motion to quash is granted in part with respect to E-3 and E-4. Tabs F-l through F-3, Denyakin Materials The materials in section F also relate to the decedent,Kirill Denyakin. F-l is a report concerning the investigator's review of video footage from security cameras near the scene. F-2 contains a search warrant and return for records related to the emergency medical treatment by those who responded to the incident. The third document, F-3, is a summary of informationobtained from Immigrations and Customs Enforcement concerning Denyakin's immigration status. These documents present purely factual data. Although the report of video evidence in F-2 contains the i nvestigator's observations of a person believed to be Denyakin, they amount to only a description of his physical condition without subjective characterization. In addition, thevideo evidence itself is available in the event any party disagrees with the investigator's characterization. The report contains useful time-stamped data concerning Denyakin's suspected appearance in the footage and it, along with the other two factual documents in section F, will be produced subject tothe Protective Order. Tabs G-l through G-23, Witness Interviews. Documents in section G include summaries of witness interviews conducted by VSP's Chief Investigator between May 5 and May 31, 2011. The witness statements with the witnesses' dates of birth and phone numbers redacted shall be produced subject to the Protective Order. Tabs H-l through H-20, Police Statements. H-l through H-20 will be produced, subject to the Protective Order. Tabs 1-1 through 1-6, Chain of Custody and R equest for Examinations, they will also beproduced subject to the terms of the Protective Order. Tabs J-l through J-16, Audio/Video and Other Evidence. The evidence included in the J-l through J-9 be produced subject to the terms of the Protective Order. The VSP's motion to quash is granted with regard to J-10. The VSP's motion to quash isgranted with respect to J-ll and J-12. J-13, J-14, J-15, J-16 and J-17 must be produced subject to the Protective Order. Tabs K-l through K-5, Additional Material, the undersigned declines to order the production of any of the documents addressed in K-l through K-12. Subject to the terms of the Protective Order entered this day, the undersigned directs the VSP to produce the foregoing mate rials to Plaintiff's counsel within ten (10) days of thisOrder. Costs for copying and duplication shall be paid by Plaintiff's counsel. The materials submitted for in camera review may be retrieved from chambers by the VSP for use in making necessary copies. Signed by Magistrate Judge Douglas E. Miller and filed on 11/7/11. (jcow, )

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UNITED STATES FOR THE DISTRICT COURT EASTERN DISTRICT OP VIRGINIA Norfolk Division JERRELL R. JOHNSON, Administrator of The Estate of Kirill Denyakin, Deceased, Plaintiff, ACTION NO. v. STEPHEN D. 2:llcv415 RANKIN, Defendant. MEMORANDUM ORDER This Quash a Police matter subpoena is duces ("VSP"). records death his underlies of a the in Johnson alleges VSP's prior motion produced for Order and ordered in camera VSP that (ECF No. (ECF No. by 32) non-party R. Denyakin officer. Motion Virginia into ("Johnson") the Stephen shooting D. Johnson's Rankin of to State ("Denyakin"), investigation Officer a Johnson Defendant, the used which Rankin subpoena incident excessive 28-6). the documents review. resolve investigation against the to Jerrell police from force against Denyakin. By filed VSP's claims materials Court Kirill Portsmouth requested which tecum decedent, Johnson's ("Rankin"), the Plaintiff, subpoenaed of before Court denied responsive On October to 24, in the part the subpoena 2011, VSP produced the materials in two binders which the Court has reviewed in detail. The objections governmental ongoing or intended opinions, F.R.D. the focus process, 618, is 620 Rhodenizer v. WL 3334744 {E.D. arguing ten factors (E.D. Fourth Circuit, cases of (4th Va. the Cir. Richmond motion described Pa. 1973). and in 983 1993) F.3d not (unpublished). or purely [but] disclosed. Id. ; 3:09cv306, 2009 both parties v. Rizzo, 59 rely are widely privilege. (text Castle, in Westlaw) 142 the followed Cruz F.R.D. on F.R.D. explicitly adopted by factors (table) Because memoranda No. Frankenhauser investigative 1055 Jallah, (unpublished). opposition, Though is the process material be The deliberative apply after must an advisory omitted). the a barring Castle v. of Police Dept., 2009) by reflecting deliberative the Frankenhauser or process factual generally October 14, governmental Supervisors, 2667 context" City of In 344 its disruption in of privilege, 1992)(citations contained result charges. documents "compiled of executive called generally doesn't Also, from Va. a claim criminal and deliberations." preventing material severable possible its as decision-making (E.D. on involved privilege "intragovernmental concluded. 339, the the privilege factual VSP sometimes recommendations 142 the into protect of by enforcement privilege, to disclosure of law investigation governmental is raised v. Bd. 1993 at in WL 621- 22; Rhodenizer, that claims "balance of the governmental obtain [his] 2009 data, WL 3334744 governmental public cause of Frankenhaus er instructs the Court of a factors F.R.D. to at guide of litigant him with which 59 to confidentiality need to Frankenhauser, ten require the the available suggested Frankenhauser in against otherwise action." *3. privilege interest information not at to to pursue 344. the necessary balancing: 1. The extent to governmental giving 2. The The processes government impact having 3. the which upon consequent to by persons which program will discouraging thwart citizens from information; their identities degree disclosure who have given information of disclosed; governmental improvement self-evaluation will be chilled and by disclosure; 4. Whether the information sought is factual data or evaluative summary; 5. Whether or the party potential defendant either pending or incident 6. seeking the in reasonably discovery any is criminal likely to an actual proceeding follow from in question; Whether the police investigation has been completed; the 7. Whether any proceedings intra-departmental have arisen or may suit is disciplinary- arise from the non-frivolous and investigation; 8. Whether the brought 9. plaintiff's in good faith; Whether the information sought is available other discovery or from other sources; 10. The importance plaintiff's Id. of Like an under this case, of the of investigative dispositive of the discovery of Court's Court witness involved shooting. review had concluded when the information Frankenhauser officer-involved factors, the this and 10 all nor brought of which following See case, favor in analysis. the statements, was the Castle, close-in-time the Court faith. compiled incident 142 to the F.R.D. is at statements). 621 As as Id. court factor observes was each were that suit after, (recognizing most ordered not of entitled of the to police at 345. available the out investigation excerpts information not arising Considering well immediately - the that Johnson's The claim plaintiffs as first production. bad sought Frankenhauser material, found a Although reports containing purely factual data. In and case. disclosure ten through factors is not sought or from the complete in 8, 9, frivolous nearly all the other month sources. importance factual of record of what happened information to the both night the Denyakin plaintiff died, and the the importance defendant of the cannot be overstated. Conversely, decision factors has been Portsmouth, by departmental noted days, but that has opposed mention ongoing. expected it a that Court all or nearly all previously makes confirms In its on officials material the of all entered its yet, no VSP of the material intra- within requested a It in also the the ten copy Federal file. No and response, prosecution the of agency bears file was some five months ago. foregoing, Protective following initial had As charges, that in 2011, the non-disclosure. criminal for their own purposes. Considering the favor decision Federal gathered in April and May, of both filings, is releasing that 7 regarding separate noted the materials and made inquiry VSP 6 findings and subject Order and (ECF to No. rulings on the terms 36), the the VSP's motion to quash:1 Tab A-l, The Summary of Investigation Document investigative Attorney Earl the behind summary, C. impressions directed Mobley. of Tab its It is an 1 to constitutes Portsmouth evaluative authors the Commonwealth's summary concerning VSP's the containing evidence 'in addition to the contents of its investigative file, the VSP produced an index of its contents which it attached as an exhibit to the publically filed memorandum. (ECF No. 28-6). This Memorandum Order addresses reference to tab numbers set forth in that exhibit. the contents by- described. in the In addition, document materials. to A-l, is most of available Accordingly, the in number materials reports of the VSP's motion documents prepared were Department by the separately has filed these materials were behind declines to argument on order subpoenaed its own The Portsmouth's four condition of material as the includes video scene. granted as does not to Portsmouth Police to disclosure. from Because Police Department, their production, contained reflect scene the the photographs, of the documents dependent production will it any under objective where Accordingly, impact These VSP the Court file pending separate motion. incident location contain upon have the category analysis drawings impact on confidentiality, process Department. the objections investigative Crime Scene Examination evidence These Police and production documents Examination", concern obtained from Portsmouth their Tabs C-l through C-4, other categorized to quash is B-l Portsmouth which has raised other objections the separately described Portsmouth Police Department Reports A well other, material which will not be produced. Tab B-l, Scene factual and of purely of the "Crime physical occurred. This measurements, items recovered factual data, as from which or any intra-departmental citizen no intra-departmental or chilling officer effect, disciplinary or input. nor would proceedings. While public decision the disclosure making Protective conclude. process, Order, All of of testing and observed become the at the documents the discovery in the in this in impact the stage, subject to deliberative the process to document C-l through C-4 Protective Order. section of the the autopsy public this confidentiality documents. to at might Lab Reports hearing, of permit information examination part seeking other the information disclosure subject through D-4, All such will the should be produced, Tabs D-l of is interest Accordingly, report In postmortem Denyakin. As has already somehow addition, Denyakin's is no involve decedent, record. case D the was person Administrator. implicated by factor warrants No production withholding of them and they will be produced subject to the Protective Order. Tabs E-l through E-6, Materials Stephen do section of summaries E Two Rankin. summaries The in Rankin Materials these of statements do not relate Rankin contain to the documents, gave during questions by they contain any evaluation or comment Rankin was statements, represented and although intra-departmental critical importance by the an of these any Officer E-l and the investigation. E-5, are investigator, on Rankin's attorney nor testimony. when giving the is still ongoing, and proceedings may arise, the investigation disciplinary defendant, close-in-time statements, their purely factual interest nature, weigh in produced subject Document Report statement. to is or deliberation produced subject a seal in by the the two materials Denyakin. review of video contains the a emergency The from any confidentiality them. They will be Police mentioned a press by inquiry documents the Department involve evidence and Incident Rankin in shortly any his after evaluation they will be documents, warrant. E-3 and This Court. is issued by documents granted in under contained conclusions these quash was execution information investigative to concern warrant The Accordingly, motion E-4, the may part be with and E-4. Kirill obtained these represents Tabs F-l through F-3, F-2 of the Protective Order. VSP's to E-3 incident. involves of officer. and The arrest Portsmouth Circuit requesting withheld Portsmouth E-6 search warrant respect to absence disclosing concerning remaining Facebook of prior Neither the Protective Order. a a Document incident. of the to the The favor E-2 relating and Denyakin Materials in F-l section is footage a from relate concerning security third document, by F-3, and those is a Customs 8 to the cameras and return treatment Immigrations also report search warrant medical F for who the decedent, investigator's near records the related responded summary of Enforcement scene. to to the information concerning Denyakin's factual data. contains be immigration the Although they condition without evidence disagrees with contains amount the to only is a video of evidence of characterization. in in F-2 a person believed description available purely- his physical In addition, the event to any the party characterization. The time-stamped data Denyakin's useful factual of present investigator's suspected appearance two report documents observations subjective itself These the investigator's Denyakin, video status. in documents the in concerning footage and it, section F, will along with be produced report the other subject to the Protective Order. Tabs G-l through G-23, Documents interviews and May form, brief section conducted 31, and in 2011. do not written by in a the by VSP's include of first statements are apparently summarize the or summaries Investigator statements circumstances (as of though between May questions, of 5 only a the interview, statements by to investigator's witness witnesses' the subscribed of are prepared on a VSP investigator's summary person sworn include Chief the the narrative not G The witness description followed Witness Interviews by the witness). the The witnesses, conversation with but each one. The undersigned cooperating witnesses recognizes is an that protecting important factor to the identity consider of prior to ordering case, disclosure the VSP of voluntarily identifying each witness of the protection statements. While identified, sources, after the brief the most their the of whose the be is the also statements numbers redacted to may shall be leads the form, most the witnesses' be produced summary, the available less relevant. dates subject their from other a month Moreover, Court by much witnesses than fresh. this obviates with is witnesses in withholding taken were be with disclosure that, were redacted might witness sought however, attachment from true memories inconvenience testimony gained statements in the This statements when disclosure, minimize produced information of statements, by name. to it incident nature witness the conclude that to likely to greatly identifying the Accordingly, of to few the birth and phone the Protective Order. Tabs H-l through H-20, Like implicate civilian concerns governmental departmental over statements, confidentiality, disciplinary identifying investigation. already witness self-evaluation investigation. have Police Statements However, those As been likely proceedings many specific with and of identified which these officers civilian the 10 the statements chilling impact may effect on arise of disclosed intra- the relate concerns all on from to participating witnesses, in police the in the officers index. In addition, Rankin officers, the himself who were scene. As identified interviewed as with civilian a narrative prompts investigator. night of between marked the Denyakin's the officers with a the these nor favor 1-1 but and involve other document summary factual and witness the statements is neither Police." information purely on encounters State the the other on contains Virginia of or events interview importance of statements questions the subject 1-6, officer describe the many their presence the Each "This the production through some of of without Most conclusions H-20 will be produced, Tabs fashion, stating case, result Denyakin. circumstances, Plaintiff's documents, and legend recommendations Under death, discovery statements, are presented in a from in nature of H-l to the through to the Protective Order. Chain of Custody and Request for Examinations Documents request for elsewhere 1-1 through examinations in this for and the warranting produced subject to factual evidence material the in the factual data and custody already documents do nondisclosure. of not They described are purely present will and any also of be the Protective Order. Audio/Video and Other Evidence behind compiled and chain These nature the terms of Tabs J-l through J-16, The are Memorandum Order. administrative concerns 1-6 Tab J include copied onto CDs 11 mostly and DVDs. The electronic electronic evidence of J-l the identified scene includes the night the and of scene events the taken J-2 includes in is calls the a CD taken to 3 surveillance security was from footage governmental not thwart audio of of and recordings the of incident. on of includes photographs downloaded other from All by the of some from night governmental While deliberative process, J-7 the the other over video J-9 incident purely from of nor from nearby factual be graphic underlying not the apply to and the these information will discourage might managed and contemporaneous may do disclosure 12 call, communication concerns be incident. contain is generally can 911 of and evidence processes the report radio the Disclosure a J-3 police J-8 of image of include investigator of of original material public this night is of the incident). J-4 dispatch and asserted compilations. involvement. the the this the vehicle. channels. the privilege after and J-6 inflammatory, factual to Denyakin were concerning incident Although potentially purely two cameras. recordings. night scene also a patrol data the on compiled disc relate supplemental photographs as (weeks channel. communication the the which daytime including related police This all contains a computerized 3 60° photographic time-stamped dispatch J-5 J-9 of as well earlier) the video taken later. internet. through surrounding incident (taken scene J-l photographs Denyakin the as by citizen impact use of the the Protective evidence the Order. Accordingly, included terms of the J-10 is an summary of contains that audio has detailed evidence. produce adequately already be J-9 not be of be in an been from his directs produced addressed. the that the subject to Rankin, a to edit produced, and The interview the audio VSP's to of the recording the statements, the which, impressions Because written of investigator, statements. two interview subjective difficult Rankin's described need through recording reveal would only J-l questions may It the undersigned Protective Order. which extent, itself in the facts the motion to are recording to quash is granted with regard to J-10. J-ll pursuant Absent includes to the sealed unsealing, production of by evidence separate this the obtained search J-12 investigator which subjective impressions and purely J-12 in the factual will not field material. be issued declines includes include - to notes is included Accordingly, to J-ll and the and J-12. 13 the VSP's Facebook page in Portsmouth. to order available field observations. disclosed, granted with respect Rankin's which should be Portsmouth reflected warrant undersigned material subpoena. from a to notes degree other report motion Johnson from - Moreover, in the the his own the data segregated, contained to quash in is J-13, the J-14, Rankin patrol recordings They may obtain to a any factual critical other the the lead, the data of the with observations contain repeat from are contemporaneous interpretation. which is impossible they must be and J-17 concern allegedly earlier obtained made incident. by of information to a revealing, to investigator the in J-15 subject Denyakin Although evaluation contained produced to in and J-17 is purely and should be produced. correspondence, articles and audio subjective or J-15 subjective Tabs K-l through K-5, All source threats an these information Order. during enhanced Again, evaluative concerning degree, contain car. Protective party pursuing J-16 no contain obtained third with from the and of material internal sections of declines to the the notes evaluations of which Tab 14 of appears of other of of be handwritten these disclosed any to newspaper investigators Accordingly, production through K-12. Many be K copies and the will investigation. the in communication, investigators. matter order addressed in K-l contained handwritten subjective factual Additional Material the the materials and from most other undersigned documents Subject day, the the undersigned materials Order. to to of the Protective directs the VSP Plaintiff's Costs Plaintiff's terms for counsel copying counsel. review may be retrieved The and to within Order produce ten duplication materials the (10) the VSP of be for .in for use in United Slates Magistrate Judge Norfolk, Virginia November 7, 2 011 15 E. MILLER STATES MAGISTRATE by camera Douglas E. Miller DOUGLAS this paid making necessary copies. UNITED this foregoing days shall submitted from chambers by entered JUDGE

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